Montana Voices: Daines right in opposing Senate filibuster rule

By David Crisp/Last Best NewsAugust 16, 2017

It’s high time someone took a stand in support of U.S. Sen. Steve Daines, R-Mont. I volunteer.

David Crisp

I have been critical of the good senator a few dozen times. But when the man’s right, he’s right. Kind of. Sort of.

Evan Barrett of Butte and Andrew Person of Missoula recently took Daines to task for his opposition to the Senate filibuster, a venerable if not always venerated relic of Senate rules.

“Getting rid of the filibuster would help to fundamentally change the U.S. Senate from the ‘world’s most deliberative legislative body’ to a vehicle for the rapid passage of whatever radical agenda might be emerging from the passions of the political arena,” Barrett and Person wrote. They concluded, “Daines needs to look further back into history than his 2012 election and drop this crazy idea to get rid of the filibuster.”

But Daines has the better side of this argument.

Let’s start by stipulating that Daines wasn’t meant to be taken literally when he said, “I think we should go to a simple majority vote on all votes in the U.S. Senate.” That would require rewriting the Constitution to remove the five instances in which it specifically requires a supermajority, plus three more that were added by amendment.

Let’s also concede that Daines’ record isn’t spotless. He backed Sen. Rand Paul’s filibuster of nearly 14 hours against the use of drones in combat in 2013, and he has voted both for and against cloture motions, which are designed to end filibusters and cut off debate.

But that can hardly be held against him. Legislators have to play by the rules that exist, not the ones they wish existed. I don’t like the designated hitter rule, but if I were an American League manager—which I surely will be as soon as Major League Baseball comes to its senses—I wouldn’t make my pitchers bat just to spite a bad rule.

Daines also has the virtue of being consistent on this issue. He worked with Speaker Paul Ryan in his House days on filibuster reform. He argued against the filibuster before the Republican conference in 2015, when the 2016 election remained very much in doubt. The Hill reported that story, and we know it’s true because Daines’ office declined to comment. That’s our Steve.

The fact is that Daines has both history and good sense on his side. The filibuster in 21st century America has little to do with the righteous one-man crusade celebrated in “Mr. Smith Goes to Washington”; instead, it has become a way to require a supermajority of 60 votes to pass anything through the Senate.

The founding fathers had little to say about the filibuster, but they thought a lot about majority rule. America’s original governing document, the Articles of Confederation, required supermajorities to pass any bill and unanimity to pass amendments. The result was chaos.

In arguing for the new Constitution, James Madison wrote in the Federalist Papers that requiring a supermajority to consider legislation would reverse the principle of free government.

“It would be no longer the majority that would rule: the power would be transferred to the minority,” he wrote.

Alexander Hamilton wrote that the effect of leaving power in the hands of the minority would be “to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”

Perhaps anticipating the 2016 election, Hamilton was particularly worried about foreign corruption. Foreign governments could more easily buy off the few senators needed to block legislation than to buy off the majority, he argued.

When he presided over the Senate as vice president, Thomas Jefferson wrote, “No one is to speak impertinently or beside the question, superfluously or tediously. … The voice of the majority decides.”

That’s pretty much how the Senate operated until 1841, when a dispute over firing the Senate printers turned into a six-day filibuster. Despite a Senate tradition of unlimited debate, the filibuster remained rare: Only 23 were recorded in all of the 19th century, in part because filibusters were physically grueling.

When state Sen. Bill Patman filibustered in the Texas Legislature for 17 hours against a bill that would have raised the ceiling on home mortgage rates, an aide described to me his elaborate preparations, which included tennis shoes and complicated underwear plumbing to avoid restroom breaks.

Exhaustion as a technique to end filibusters began to fall apart during World War I, when President Woodrow Wilson, frustrated at the difficulty of getting war-related legislation passed, urged a cloture rule.

“A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible,” Wilson said.

The Senate concurred in 1917, passing Rule 22, the cloture rule, which allowed the Senate by a two-thirds vote to cut off debate and force a vote. For decades, cloture motions were rarely needed; only five successful cloture motions were filed in the next 46 years. Filibusters that did drag on were often not for the best of reasons: Sen. Strom Thurmond set the all-time record in 1957, holding the Senate floor for more than 24 hours to fight a civil rights bill. In 1964, Sen. Robert Byrd filibustered a civil rights bill for 14 hours.

A series of rules amendments beginning in the 1970s changed everything. The majority required to cut off debate was reduced to 60 votes. Other legislation was allowed to proceed while filibusters were in place. Most importantly, senators were not required to actually stand on the Senate floor and debate. Mere notice of the intent to filibuster was enough to block any bill that couldn’t muster 60 votes.

The number of cloture motions exploded. It took until the 92nd Congress (1971-72) for the number of cloture motions to exceed 10 in a session. The number has never fallen below 10 since then, and it first hit 100 in the 100th Congress (2007-08). The current record of 252 was set in the 113th Congress (2013-2014).

The result has been exactly the sort of thing Hamilton warned against: “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”

The filibuster at its best preserved the possibility of a lone senator of conscience standing against the roar of the crowd and sometimes prevailing through sheer determination and force of character. But that function has all but disappeared in the modern Senate.

Other ways exist to preserve the rights of the minority in the Senate, including ending the majority party’s stranglehold on committee chairmanships, preserving the right to offer germane amendments and limiting the ability of individual senators to place anonymous holds on motions.

At the least, we should return to the days when a filibuster required moral courage and physical strength. Perhaps Daines will lead the way. Senator, you have the floor.

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